Yield To Bicycles In Bicycle Lanes - Law Takes Effect on July 1, 2020

Help Us Spread the Word!

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Senate Bill 20-061, also known as the bike lane bill, is now law in Colorado and takes effect on July 1, 2020. Signed into law by Governor Polis on March 20th, 2020, C.R.S.42-4-714 requires motorists to yield the right-of-way (ROW) to a bicyclist in a bike lane. It also creates a new traffic offense for failing to yield to a bicyclist or other authorized user in a bicycle lane.  Failure to yield will result in a class A traffic offense and is punishable with a $70 fine and three points assessed to the driver’s license.

According to Colorado Revised Statutes 42-1-102 (10.3), a bicycle lane is defined as “a portion of the roadway that has been designated by striping, signage, or pavement markings for the exclusive use of bicyclists and other authorized users of bicycle lanes.”  It is important to note that bicycle lanes do include an intersection if the bicycle lane is marked on the opposite side of the intersection. So yes, motorists must definitely yield to bicyclists riding in the intersection.

By law, bicyclists in Colorado must stop at intersections where there is a stop sign or stoplight regardless whether there is a bike lane or not. Only Aspen, Breckenridge, Dillon, Thornton, and Summit County have adopted the so-called safety stops in Colorado. The safety stop, also known as the Idaho stop, rolling stop, or stop-as-yield, allows cyclists to treat a stop sign as a yield sign, and a red light as a stop sign. It is up to each municipality to decide whether to adopt Colorado's stop-as-yield legislation.

If a motorist fails to yield to a bicyclist or other authorized user in a bicycle lane and the result is a crash, the motorist should be cited with careless driving, a class 2 misdemeanor traffic offense, and punished as described in C.R.S. 42-2-1402 (2)(a).

Furthermore, if a motorist fails to yield to a bicyclist or other authorized user in a bicycle lane and the result is bodily injury to another person, the motorist should be cited with careless driving, a class 1 misdemeanor traffic offense, and punished as described in C.R.S 42-4-1402 (2)(b)

Prior to this law, there was nothing on the books in Colorado to make it mandatory for motorists to yield to cyclists in bike lanes. We needed legislation that placed the obligation to yield ROW squarely and firmly on motorists about to turn across a bike lane or at an intersection where a bike lane exists. “It has always been my belief that a motorist must yield to a cyclist in a bike lane before turning into the bike lane or crossing through it,” says Megan. 

After handling bike cases for ten years, as well as having a personal interest as the result of her own crash, Megan saw a need for a law to protect cyclists in bike lanes. 

Last fall, Megan reached out to Senator Mike Foote, who in 2019 sponsored Senate Bill 19-175  to protect vulnerable road users, including cyclists. Megan expressed her concern to Senator Foote that there were no laws in Colorado to protect cyclists in bike lanes. Senator Foote, a cyclist himself, agreed. 

Both Megan and Senator Foote also felt that there was an uneven application of the law statewide when it came to how/if drivers are cited. Sometimes the driver gets cited, sometimes the cyclist gets cited, sometimes nobody gets cited. Senator Foote said the goal of this bill was to clear that up.

Hottman Law Office has seen law enforcement and insurance carriers investigating bike lane crashes in varied and inconsistent ways. We have heard crazy arguments such as “Even though the cyclist was riding lawfully in the bike lane,

  • They were going too fast for the conditions (even though well under the speed limit).

  • They were not dressed brightly enough (even though it was broad daylight and they had blinkie lights on).

  • The cyclist still should have made eye contact before proceeding straight.

  • The car made it to the intersection first, so it is the cyclist’s fault.

  • Since traffic was stopped to the left of the bike lane, the cyclist should have stopped as well.

  • Cyclists should have to anticipate and yield to cars turning right across the bike lane to access the driveway.

  • The cyclist should have anticipated they would be overtaken.”

Cyclists are encouraged to use bike lanes instead of riding on sidewalks. They are there for safety reasons. Cities all over Colorado are adding bike lanes to make cycling safer.  In 2017, Denver voters approved a 10-year, $937 million bond, which is called the Elevate Denver Bond Program, to improve Denver’s infrastructure. The program dedicated $18 million to the design and construction of 50 miles of neighborhood bikeways and protected bike lanes, so-called high comfort bikeways.

Unfortunately, the fact of the matter is, cyclists are often injured or killed while riding in the lane that is actually supposed to protect them. 

To add insult to injury, cyclists are often blamed or even cited for causing a crash in the bike lane. There are near misses happening all over the state. Senator Foote has been the victim of those near misses several times. Drivers will accelerate in order to make the right-hand turn, so that they do not have to wait for the cyclist to get through the intersection.The driver misjudges how fast the cyclist is going and cuts off the cyclist. The cyclist has to brake really fast and may end up falling off the bike, or the cyclist runs into the car. 

On Monday, February 3, 2020, Senator Foote, Megan, several of our former clients who had been hit in the bike lane, law enforcement, Bicycle Colorado, AAA Colorado, as well as members of the Colorado cycling community testified in front of the Senate Judiciary Committee about the need for SB20-061 to make cycling safer in Colorado. 

One of those cyclists hit while riding in the bike lane was Delores Marquez. She was riding in her neighborhood on her way to a bike trail when a driver ran a stop sign. Delores landed on the hood of the car, and her head hit the windshield. The driver accelerated, and Delores’ body continued to be hit by the car. She had a broken sacrum and tailbone, a severe concussion, and several other injuries. Delores went through two surgeries and almost lost her life due to complications during one of the surgeries.

I thought I would be safe riding in a bike lane because the city put them there for us to ride vs. the traffic lane. If we are going to continue getting bike lanes, then the city needs to protect us in those lanes. Motorists have to watch out for the cyclists,” she said. “I want to empower law enforcement, and I want motorists to know that they will be cited if they don’t yield to cyclists who are lawfully riding in these lanes in Colorado.

Dennis King was also hit while riding in a bike lane. As a retired law enforcement officer and now a part-time campus police officer at the Colorado School of Mines, he stated that passing the bill into law would help law enforcement officers cite drivers correctly.

The bill itself, I think, would be a valuable tool as an officer to give us something to do, that when we get into these encounters between a car and a bicycle, you would have a new option, a new tool. You’d have something we didn’t have before,” he said. 

Skyler McKinley, Director of Public Relations and Government Affairs at AAA Colorado, testified on behalf of AAA in support of the bill. He explained why both motorists and cyclists should want the bill, as it clears up what is an oversight in the law.

It clarifies how bicyclists and motorists are required to act when bicycle lanes are present. Specifically, it gives drivers more information about what they are supposed to do when they see a bicycle lane. They don’t have that information right now, and that’s what creates conflict, and it creates tension,” explained Skyler Mckinley.  “That oversight has really burdened drivers at the safety expense of people on bicycles.”

Teri Vogel, whose husband Chuck Vogel was hit and killed by a driver on July 4, 2019 while riding his bike, encouraged lawmakers to pass the bill due to the need for clarity for law enforcement. Terri advocated not only in support of the bill for bicyclist safety but also for motorist behavior.

I feel that if there are laws put into place and guidelines that help both the motorist understand their duty, their ownership, their responsibility while also helping law enforcement officers know how to act and what to enforce, then everybody comes out better.”

The bill passed with a vote of 3-2 in the committee and then in the Senate.

On February 20, 2020, we were back at the State Capitol testifying, this time before the House Judiciary Committee along with the bill’s co-sponsor Representative KC Becker. It passed 11-2 in the committee and then passed in the House.

Now, we are asking you to spread the word about this new law. Tell anyone and everyone, even if they are not cyclists, because, most likely, they are motorists who need to know! It is time to educate your neighbors, co-workers, family, and friends. If you have a teenager who is learning to drive, let them know that they must yield to bicyclists in bike lanes. If you know a law enforcement officer, update them on the new law. Share the news to your social media sites. Let’s get the word out!



 

 

More Protection for Cyclists in Bike Lanes

Lawmaker Proposes Legislation - Cyclists Advocate for Protected Bike Lanes

On Monday, February 3, 2020, Senator Mike Foote will address the Senate Judiciary Committee about legislation he is sponsoring to require drivers to yield to bicyclists in bike lanes. Senate Bill 20-061 will make it possible for law enforcement to cite drivers who fail to yield to a bicyclist in a bike lane. Failure to yield would result in a class A traffic offense and would be punishable with a $70 fine. The law would take effect on July 1, 2020, if passed.

If the driver fails to yield to a bicyclist in a bike lane, and this results in a crash or in bodily injury, then this is considered careless driving and punished under the careless driving offense.

Senator Foote also sponsored SB19-175 (Serious Bodily Injury Vulnerable Road User Penalties) in March 2019 which was then signed into law by Governor Polis on May 29, 2019. That same day, Megan was seriously injured when a 19-year old driver crashed into her while she was riding in a bike lane in Arvada. (More HERE).

After handling bike cases for ten years, as well as having a personal interest as the result of her crash and her investment in bike advocacy/activism, Megan saw a need for a law to protect cyclists in bike lanes and to give law enforcement something to work with when it comes time to cite a driver who hits a cyclist riding in a bike lane: “It has always been my belief that a motorist must yield to a cyclist in a bike lane before turning into the bike lane or crossing through it,” says Megan. 

Last year, Megan reached out to Senator Mike Foote and expressed what she saw as a really big hole in the law, not just in Colorado but in most states, where we have the addition of bike lanes for cyclists to use but no laws to protect them.  

Senator Foote agreed, so he and Megan partnered to draft SB20-061. She will be at the Capitol to speak to the Senate Judiciary Committee about the need for this bill to be passed into law to protect cyclists. Alongside her will be Ali Clerkin, who was hit by a driver on May 9, 2016, while biking in the bike lane on Marion Street at E. Bayaud Avenue. It was around 8:00 am, and Ali was wearing a helmet, normal street clothes, and white athletic jacket, making her clearly visible. The street curves to intersect with Downing Street and the bike lane follows this curvature. 

Ali was following this curve of the road in the bike lane; there is also a dotted line where cars can cross over to continue straight to a smaller intersection.

It was at this point that a pick-up truck went through the dotted bike lane line to cross over to the other side and hit Ali on her left-hand side.

“I was just beginning to ride with the curve when a green truck came barreling through the bike lane to move straight through to the smaller intersection (Marion and Bayaud). The truck hit me around the front passenger side. I felt my head and left side of my body hit the car. I fell to my left and hit the ground, where I immediately felt the pain in my left arm,” explains Ali. Since she landed on her left side, most of the ‘blow’ was to that side only.

An ambulance transported Ali to the hospital where doctors told her that she would need surgery. Her shoulder was dislocated, and her upper left arm, elbow, and hand were broken:

  • Humerus fracture (in at least 2 places) - x-ray, CT scan, surgery

  • Elbow fracture - x-ray, CT scan, sling and brace for isolation

  • Wrist (carpal) fracture - x-ray, CT scan, stint for isolation.

According to the police report, the driver was not cited due to conflicting statements and no witnesses. The driver stated that he saw Ali in the bike lane but that she swerved over into the side of the truck all of a sudden. However, the driver indicated to police that he “was probably crowding the bike lane a little bit” and saw Ali in the bike lane and “probably should have moved over a bit.” 

Ali was very disappointed to learn that although she had been severely injured, the driver would not be punished. “There essentially was no accountability placed on him,” she says. “This is mostly because there was no further investigation completed by the Denver Police Department. When the police officer got to the scene, the driver already had his story fabricated that I swerved into his truck and that I only had a dislocated shoulder.” Ali firmly believes that a follow-up investigation should always be done as mental/psychological injury cannot be seen right away regardless if there is serious bodily injury or not.

When Ali followed up with the officer, he asserted that he could not undeniably prove what occurred in the crash in a court but believed the driver to be at fault and thus assigned the driver as Traffic Unit #1 in the report and cited other incriminating comments that the driver told him.

Since the driver did not have to appear in court, Ali was deprived of the chance to seek justice in a traffic case and never had a chance to see the driver punished. Ali was clearly in the right and the driver at fault. Our firm obtained the driver's full policy limits and then also made a substantial recovery from Ali’s own auto insurer as well—all indicative that the insurers accepted fault on behalf of the driver and did not apportion fault to Ali.

As a result of her injuries, Ali had to take sick time, go on short-term disability at 70 percent pay, and was not able to return at a full time capacity immediately. Her husband became her caretaker and accompanied her to all doctors’ visits and the surgery. He woke her up every four hours throughout the day and night to administer pain medication for the first two weeks, ran errands, did all the cooking and cleaning, and drove her to her appointments. He also did physical therapy with her two to three times a day. 

Beyond the physical injuries, the crash took an emotional toll on Ali. The missed work and specifically the timing inhibited her career growth; the position above her was vacated, and she was filling the role and attempting to prove herself worthy of the promotion when this crash happened. 

It has also been difficult for Ali to get back on a bike again. The first time riding her bike was on the two-year anniversary of the crash. “I truly have lost my appetite to ride because overcoming the anxiety does not outweigh the joy I once felt when riding,” she says.  She has only ridden a handful of times, more as a mental health initiative. She rode on dedicated paths without cars or on the sidewalk. (Read more HERE).

Ali is also more afraid to drive in a car. Since the car hit her from behind/in her blindspot, she is constantly afraid that she will miss seeing someone and hit a person, biker, or car. 

One of the main things that Ali learned is that simply riding in the bike lane does not provide an impermeable shield from cars to bicyclists. She believes that in order to make cycling safer, physically separated bike lanes are necessary to make it harder for cars to impede the bike lane.

Community volunteer and bike advocate Amy Kenreich agrees. She has been involved with the Mayor’s Bicycle Advisory Committee (MBAC) since 2017 and has been speaking to both residents and cyclists in support of the S. Marion Street Parkway Improvements project. The city is currently finalizing designs, and construction of a protected bike lane is planned for 2020. Although Amy heard a lot of positive feedback from part of the population, there are many people, especially residents, who oppose adding a protected bike lane. Amy says that most of the arguments against the protected bike lane stemmed from one theme: “Not In My Back Yard.” “Sometimes people are simply opposed to change,” she says.

“I had a really difficult time understanding why anyone would oppose a protected bike lane in front of an elementary school. I live four blocks away from this project. I take my kids to the playground at Steele Elementary often, and I also ride this street to reach the Cherry Creek Trail. When Alexis Bounds was struck and killed, it made me mad and terrified me. Because I have been on the MBAC and because I know about Vision Zero, I just couldn’t sit by and do nothing,” says Amy. 

Amy encourages people in Denver to follow the Bicycling in Denver page and to check out “News and Updates” for a list of upcoming public meetings.

One of the best things you can do is attend these meetings and make your voice heard.  Another way you can help is to submit feedback on the same site. DOTI (Department of Transportation and Infrastructure) really does read and tally up all comments that come in on a project. For the Marion project, the city showed a slide of all the types of feedback that came in, and it clearly showed that the #1 priority was the safety of bicyclists and pedestrians. Your voice matters, and it doesn’t take much time to make sure it’s heard,” emphasizes Amy.

Another site to watch is the Denver Bicycle Lobby. They post the Denver bike lane public meeting dates on their site and also host meet-ups and organize efforts to support bicycle advocacy in Denver. 

Please advocate for safer cycling with us on February 3rd at the State Capitol in supporting this bill. Here are the details:

State Capitol

200 E. Colfax

Denver, CO 80203 

The hearing will be on the third floor in room 352 - Senate Judiciary.  

Time: 1:30 pm. 

How to Get a Serious Bodily Injury Charge Filed

Colorado Cyclists Can Push for Application of New Vulnerable Road User Law in Their Cases


Have you been the victim of a crash after May 29, 2019, involving serious bodily injury (SBI)? If so, here is what you need to know in order to get the charges that the driver will face elevated to Careless Driving Involving Serious Bodily Injury (SBI) to a Vulnerable Road User (VRU).

First, Governor Polis signed Senate Bill 19-175 into law on May 29, 2019, which increases the penalties for careless driving resulting in SBI to a VRU. The bill also provided a definition of a VRU which does include cyclists. Senator Mike Foote and Representative Dylan Robert sponsored the bill which was strongly supported by bike advocates, such as Bicycle Colorado, who worked directly alongside lawmakers to draft the bill.  Bike advocates who pushed for this bill believed it would be an automatic sentence and added tools to district attorneys’ tool boxes in terms of sentencing recommendations/options in addition to assessing points to the driver’s license.  

The new law, C.R.S. 42-4-1402.5, makes careless driving causing SBI to a VRU a class 1 traffic misdemeanor according to Jennifer Tibbitts Knudsen, Traffic Safety Resource Prosecutor with the Colorado District Attorneys' Council. It allows the court to require a convicted driver:

  • To attend a driver improvement course.

  • To perform useful public service not to exceed 320 hours.

  • To pay restitution.

Upon a conviction of the VRU charge, the Department of Motor Vehicles must assess 12 points against the privilege to drive, says Jennifer. 

Second, according to C.R.S. 42-2-1601 (4)(b), SBI is defined as “injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.”

Next, Jennifer explains that if there are felony charges in cases of careless driving causing serious bodily injury to a vulnerable road user, the following language would be used in the charging documents: 

Defendant unlawfully drove a motor vehicle in a careless and imprudent manner without due regard for the width, grade, curves, corners, traffic, and use of the streets or highways and all other attendant circumstances and the defendant’s actions were the proximate cause of serious bodily injury to a vulnerable road user; in violation of sections 42-4-1402.5(2) and 42-4-1402, C.R.S.

When law enforcement officers write a ticket, both sections (42-4-1402.5(2) and 42-4-1402) of the statute must appear as follows:

Infliction of Serious Bodily Injury to a Vulnerable Road User 42-4-1402.5(2) and 42-4-1402, C.R.S.

Now that we have gone over the law and explained SBI and VRU, what can you as the injured cyclist do to get the new law applied to your case if you sustained serious bodily injury as the result of a careless driver? Here is a guide with steps we recommend in order to get the local city attorney or DA to refile the summons using the new VRU law:

  1. You will need to provide police with a signed SBI form from your doctor proving that you sustained SBI. Often, the police officer will ask the ER doctor to sign the form if injuries warrant SBI. Police will sometimes follow up with the victim and ask for provider information or even medical authority. If this is not the case, then you need to contact the police officer/department for a blank SBI form. It will usually have the police letterhead on it. You will need to push for it, as the police department often does not pursue the SBI form once the ticket is written. You may need to get your SBI form signed by one or more doctors.  Once you have the form from your doctor, ask police to reissue the ticket and cite the driver with the new VRU law. Ask police to send you the updated summons and then look up the next court date in the case. To look up when the case is next set for hearing use this link: https://www.courts.state.co.us/dockets/

  2. Now that you know when and where the case will be heard, you need to find out which DA is handling the case and get in contact with him/her ASAP. Tell them you do not want them offering any plea deal, and that you want the driver to plead guilty to the VRU charge (and lose their license), or that the DA needs to take the case to trial if the driver refuses to plead guilty to the VRU charge.

  3. If the DA indicates any intent to offer a plea deal, like reckless driving at eight points or careless driving at four points, speak up. As the victim, you get to speak up about your wants and desires for justice.

  4. Several court hearings/continuances may then take place, moving the case out a few months—this is normal. The driver may elect to hire an attorney to represent him/her. The attorney will discuss the case with the DA and see if a deal can be made.

  5. Eventually, there will be a sentencing hearing (unless the DA loses at trial and the driver gets off "not guilty"). You need to attend the sentencing hearing and tell the judge what you want. Usually, you can ask for community service hours, or say you want their license revoked—as a few examples. If you end up negotiating settlements with the driver's insurance company for your bike equipment and bills, etc. then you cannot also pursue restitution as part of the sentence (you cannot double dip).

    Honestly, we care most about the driver's license revocation and a lot of community service. A bike-friendly driver course with Bicycle Colorado is also a priority.

    HERE IS A REAL-LIFE, RECENT EXAMPLE:

    Dan Collier was recently seriously injured in a crash and has been fighting to have the charges against the driver who hit him elevated.  An avid cyclist, Dan has ridden tens of thousands of miles.  He has crashed before, been hurt, and has gotten back up each time. He would spray his wounds with his water bottle, do trailside repairs to his bike, and always ride home.  Dan says that this crash did not seem different until later.  

    On Sunday, September 8, 2019, at about 3:39 pm, Dan left home to ride the Santa Fe Trail north to the Greenland Open Space, do a lap around Kipp's Loop, and return home.  At 5:35 pm, he was on the return trip and stopped at the intersection of Second Street and the Santa Fe Trail in Monument, CO. 

    At the crosswalk, Dan pressed the button to cross the street. The cars to the left of him came to a full stop at the red light, and he was given the go signal by his light. Dan started crossing as a gold-colored Subaru to the right in the distance appeared to be slowing down. As he got halfway across the street, Dan saw that the Subaru was not stopping. He banked hard left to try and get away from him, but it was too late, and Dan was hit. The driver did not slow down at all. Dan is quite certain that the driver was entirely unaware of him until the moment of impact.  The driver made no effort to brake or swerve.

    Dan hit somewhere between the front quarter panel and side mirror. The car grabbed his front wheel, shoved him parallel, and he rode the side of the car until quickly being slapped forward into a sharper left turn by the side mirror.  The bike then kept rotating hard left without him banking with it. He was forced 90 degrees left by the force of the hit, and the bike rotated perhaps 180 left. This wheeled him a few feet away from the car before slamming him onto the pavement.  The driver said that he "took Dan out with his side mirror."

    For several minutes after the initial impact, Dan was sitting in the street with the wind knocked out of him, trying to catch his breath.  After he stood back up, Dan really thought that he was going to just ride home. “Shock can do that, and that is what the responding officer saw.  I was not visibly injured, and I might have even said that I wasn't badly injured, and that is why the driver was originally charged with just running the red light,” he says.

    Dan had pain on his right side and under his right arm that very well could be the mirror smacking him followed by the impact with asphalt. He landed on his right side, because that was where all of the injuries were (palm-sized bruise on his right hip, road rash on his right elbow, and fractured ribs on his right side). 

    An ambulance transported Dan to the hospital where he stayed for four days. It was in the ambulance that the pain really started to set in, and Dan realized this time was more serious than any other.  In the ER, he found it more comfortable to stand, so he stood for the IV, walked to his X-ray, and walked to and from the CT. It was almost an hour later when he passed out. Then that night, Dan was convulsing in pain as each of the nine or more rib fractures triggered muscle spasms that fed off each other's pain signals, clamping down tighter and tighter and producing new pain and tighter clamping.

    Police originally charged the driver with "failure to obey traffic control signal," because they did not realize the seriousness of Dan’s injuries. The driver admitted that he had been fiddling with his radio, was not watching, and that was the reason he ran a red light and hit Dan in the marked pedestrian crosswalk. The driver continued for at least 30 feet before stopping.

    After leaving the hospital, Dan wrote to the responding officer for help in getting a copy of the incident report.  Dan felt that the officer’s initial attitude was that his part, in this case, was done. He had filed his report and moved on.  

    Dan had been looking around for a personal injury attorney to help with his case since every aspect was brand new to him.  He says, “I was not interested in the vengeance motivation advertised by some and was turned off by the lack of passion the others had.  Then I found ‘The Cyclist Lawyer’ via an Internet search. Megan Hottman herself was willing to talk to me on the phone and provide a lot of basic information.  This included the reference to the Colorado Vulnerable Road User Law that neither I nor the other attorneys had heard of.”

    Dan went to his next available point of contact since he felt that the officer had washed his hands of the case.  “Monument is a small town, and their website offered the email address of the police chief. I wasn't planning on going that high up, but that was the point of contact I had available, so I sent an email there with an apology in case I was overreaching,” Dan says.

    Quickly thereafter, the original officer called Dan.  He stated that they had never heard of the Colorado Vulnerable Road User Law that Dan had cited. However, he and his sergeant reviewed it and concluded that this new law was entirely applicable here, that the driver would  receive a new summons with the upgraded charges, and they would add this law to their FAQ sheet so that this is more commonly known to their department.

    Monument Police asked Dan to provide them with an SBI statement signed by a physician as part of their investigation. He requested this from the records team at Memorial Hospital and later from his primary care physician, as Memorial Hospital took several weeks to provide him a statement. On November 8, Dan submitted a statement from his physician to Monument Police.  Coincidentally, Memorial Hospital came through that same week with their SBI statement explaining that he had at least nine fractures across six ribs and a hemopneumothorax.

    After Dan submitted the SBI statements, Monument Police assured him that they had issued a new summons and, indeed, charged the driver under the new VRU law. The driver picked up the revised summons.

    The next step for Dan will be to look up the new court hearing date and get in touch with the DA handling the case. He will need to tell him/her that he does not want any plea offer, and that he wants the driver to plead guilty to the VRU charge (and lose his license). Another option would be that the DA needs to take the case to trial if the driver refuses to plead guilty to the VRU charge.   

    Dan’s life is very different now than before the crash. He cannot bike, lift anything substantial, or generally be of much use around the house. He used to race competitively back in the 1990s (before getting married, kids, and job), and biking is still essential to his well-being.  Now, he goes to work and then needs to come home and rest (heating pad and over-the-counter pain relief). On the day of the crash, Dan was out for a 25-mile ride at a vigorous intensity, because that is the minimum that he needs to not feel sick from lack of activity. “Walking around the block just doesn't cut it, and that's about all that I can do now,” he says.

    We will keep an eye on this case and provide updates.

A sample SBI form.

A sample SBI form.

Nebraska Needs Stiffer Penalties for Drivers Who Injure Cyclists

$100 Fine for Careless Driving Lets Drivers Off Easy 

A driver’s poor decisions and careless driving could have cost Gary Little his life. It could have left a wife without her husband and children without their father. Gary came within inches of dying because a 17-year old driver “decided to get high and drive a 4,000-pound instrument of death,” he says.

It was the night of August 18, 2018, in Lincoln, Nebraska, when the driver of an SUV crashed into him. He was riding south on a bike path around 10:00 pm when the driver going northbound turned into him as he was crossing the intersection. Gary was wearing a helmet and using properly working lights. It was dark, but street lights lit up the area. 

A witness, who was also driving north, stated that the driver of the SUV pulled out in front of her from a parking lot with no turn signals and was inches away from hitting the witness’ car. The driver sped out of the parking lot and turned right onto the next road at about 40 mph with no turn signals. The witness also explained that the SUV traveled so fast that it drifted around the corner. 

Gary was not able to stop quickly enough. He was thrown to the side of the road and landed in the grass after colliding with the SUV. He was unconscious and not moving.

According to the witness, the SUV stopped, and the driver got out and started screaming. She then got back into her car and tried to leave. By this time, the witness and others, who had gathered at the scene, stood in front of the SUV to block the driver from taking off. 

The driver called someone, and another female arrived a few minutes later. She started going through the SUV and grabbing things. She then attempted to run away from the scene. By this time, the police had arrived. The witness yelled at police officers to chase the other female down. When police caught up to her, they found marijuana in her possession.  The witness stated that the SUV driver moved very slowly, appeared intoxicated, and seemed not to know what was going on. 

The witness checked Gary’s pulse. He woke up about four minutes later and was not aware of what had happened. He was taken to the hospital by ambulance.

Gary’s injuries required surgery for a torn rotator cuff in his right shoulder.  Both knees had deep bruising, and he had abrasions to his forehead. 

He went through three months of physical therapy and could not ride his bike for six months.  Now for someone who has been riding bikes for over 45 years, commutes by bike every day, and is a competitive gravel racer, not being able to ride his bike was tough for Gary. His recovery is ongoing, but he says it feels great to be back on his bike!

Citation: Negligent Driving, amended to Careless Driving and Possession of Drug Paraphernalia and Marijuana.

Fines/Penalties:  Total - $149.00. $100 fine plus $49 in court costs for the traffic violation. The driver was assessed four points against her license. 

We reached out to a local DA in Nebraska to help us understand why the driver was not punished more severely. 

First, Nebraska currently does not have any vulnerable road user (VRU) laws on the books.

Second, in this case, the police officer cited the driver for negligent driving. “If a ticket is issued, the cop decides what offense they believe has been committed.  Whatever they put on a ticket is just a recommendation to us. We might disagree and not charge anything, we might add charges, we might charge a less serious offense, or we might charge a more serious offense,” explains the local DA.  

 Rather than going to the City Attorney’s Office, the ticket went to the County Attorney’s Office.  According to the DA, there is no negligent driving charge under state laws. Instead, there is a careless driving charge (Nebraska Revised Statute 60-6, 212), which is the exact same thing except that a careless driving offense adds four points to the driver’s record compared to three points for negligent driving. This is the reason the ticket was amended from negligent driving to careless driving.

 Careless driving under Nebraska law is a traffic infraction rather than a misdemeanor. The maximum fine for a first offense is $100. A second offense within a year can cost up to $200, while a third offense would be $300. The Nebraska Supreme Court has set the waiver fine schedule for any fines that are not set by statute. 

 The DA explained that after the charging decision is made, it gets filed with the court.  He goes on to say that not everyone who gets a ticket must go to court. Most low-level traffic offenses, such as speeding, failure to yield, and expired registration, are given the option of paying by waiver and skipping court. A defendant can still have a trial by telling the clerk that they wish to have their case set for trial.

 However, most people who get a traffic ticket never appear in court.  Once the ticket is signed, no one in the County Attorney’s Office will look at it again unless it is being contested.  

 “In this case, careless driving is a waiver eligible offense.  The fine was preset at $100, and the defendant opted to pay the fine rather than have a trial,” says the DA. The driver was assessed four points against her license. The points are all set out by a schedule in the statutes, so neither the judge nor the prosecutor really have any control over how many points a person gets on their license. The judge can’t revoke a license for a careless driving charge, and the maximum penalty is already being imposed.

 The next step up from careless driving would be reckless driving which requires an element of intent behind operating a vehicle poorly.  “In this case, there was no intentional bad driving, she should have seen Gary but just didn’t,” says the DA. For reckless driving, you usually are looking for speed, location (highway v. residential), weaving, unsafe passing, violating traffic control devices, etc.  Failing to see someone would not rise to the level of reckless driving.

 “The example I often give is if you have someone cleaning a loaded gun and it goes off and hits someone, that would be negligent.  Yes, they shouldn’t have been cleaning a loaded gun, but there was never any intention of putting someone at risk. Compared to a situation where someone is trying to scare a group of people and intends to fire a shot over their heads but accidentally hits someone instead.  There they had the intent to discharge the gun, might not have intended the result, but intended the action. That would be reckless,” says the DA.  

 People often want to draw a distinction between someone who fails to yield and causes serious bodily injury, and a crash that involves property damage.  “As the law sits now, there are no distinctions in the law, all cases where someone fails to yield are treated the same regardless of the outcome (excluding death),” he says.

 This begs the question if the law should treat the situations as different?  Do you punish someone more severely for negligent driving if someone is hurt? Are they any more negligent than someone who wrecks a car? Gary would most likely argue for more severe punishment after what he has been through!

 If you are a VRU in Nebraska, whether a cyclist, pedestrian, scooter rider, road construction worker, etc. and would like to see drivers face harsher penalties for negligent or careless driving, consider one of the following: 

Arizona Legal System Failing Injured Cyclists

No consequences = No Changes.

With its natural landscapes, bike infrastructure, and perfect weather for year-round cycling, Arizona is considered by many as a cycling paradise. Every year, cyclists head to Arizona to cities such as Scottsdale, Phoenix, or Tucson to enjoy miles of cycling routes and open roads. It is also home to many professional cyclists, endurance athletes, and bike commuters. The conditions are honestly, ideal.

Yet, law enforcement and city attorneys are dropping the ball when it comes to protecting cyclists and holding motorists who injure them accountable. Several of our Arizona-based clients saw the at-fault drivers minimally charged and even more minimally punished with paltry five-hour classes. Some even got the charges against them dismissed!  Drivers are simply not punished severely enough for causing injury to cyclists. 

In 2017, 32 bicyclist fatalities were reported in Arizona with 1,371 cyclists injured. That made Arizona the 5th most dangerous state for cyclists. According to the People Powered Movement, Tucson ranked second and Phoenix fourth as the most dangerous cities nationwide for cyclists in 2015. People For Bikes gives Scottsdale a low score of 1.7, and gives Phoenix a score of 1.5.

Based on our recent experiences, it seems that traffic violations involving cyclists in Phoenix and Scottsdale rarely make it to court, and the fines/penalties are minimal. Drivers may end up getting off with a $250 fine and no jail time. If a motorist seriously injures or kills a cyclist when violating Arizona's 3-foot passing rule (§28-735), the financial penalty would increase to $500 and $1,000 respectively. 

There is no specific statute in Arizona that addresses vehicular manslaughter, and only certain traffic violations may lead to a manslaughter charge if they involve the death of a person while driving. These include driving under the influence, excessive speed, aggressive driving, and racing. (See Arizona Revised Statute (A.R.S.) §13-1103).

Currently, Arizona does not have any laws to protect vulnerable road users (VRU), which in addition to cyclists also include pedestrians, motorcyclists, children, elderly and disabled people.  VRU applies to those groups most at risk in traffic. Additionally, “Arizona is still one of two states that has failed, yet to adopt any prohibition on texting while driving,” according to Arizona-Look Save a Life.

Arizona as a touted cycling mecca, needs to do a LOT more to protect its resident cyclists and the hundreds of cyclists who flock there in the winter for warm riding. Cycling is a profitable subset of tourism for this state, and while bike lanes are very common and prevalent (which is a good start), the state needs stronger, harsher laws and intentional enforcement. It is time for law enforcement, city/district attorneys, and lawmakers to cite drivers properly, enforce harsher penalties, and enact legislation to make cycling safer and protect all VRUs.

Despite serious bodily injuries to our clients, two of the drivers were allowed to take a five-hour defensive driving class, had their tickets dismissed, and received no points or fines. In one case, the driver's ticket was dismissed even before the class was required. None of these drivers even had to appear in court! 

Scottsdale - Our client Ryan Hardy (above) was riding in a marked bike lane around 7:30 pm on February 26, 2019 when he was right-hooked at a T intersection where he had the right of way. He was riding with a bright front light and a flashing rear light and was wearing a helmet and a kit with reflective bands. The driver told police that he “didn’t see the man on the bike” when he turned.

Instead of waiting behind Ryan to safely make it across the intersection, the driver accelerated, passed Ryan, and then made a right-hand turn directly in front of him. The impact of the collision threw Ryan in front of the car into the intersection. He was transported to the hospital for his injuries.

Citation: 

Violation of 28-754 - Unsafe Turning Movement to the Right 

Fines/Penalties:  

A minor traffic violation in which the driver took online traffic school ($200), and all charges were dropped. 

How does Ryan feel about the outcome? In no way, shape, or form does he feel that the outcome was just or fair. “It’s pathetic and insulting because about six months later, I still have several problems on a daily basis and still cannot work out in almost any capacity. I still have to see physical therapists, concussion specialists, neurologists, a therapist, and have never taken so many prescription drugs to control problems in my entire life,” he says.

Ryan believes that a law similar to the strictest DUI laws in the country, applied to making any and all contact with a person/cyclist while driving, could change a lot. Like those extreme DUI laws, major monetary consequences, a very high level of culpability, and, maybe most importantly, the highest/strictest level of enforcement of this law and its consequences would help to bring about change.

If he had the chance to talk to the driver about cyclists and safety, Ryan would point out that the majority of outcomes when hitting a person/cyclist with a car is that a human being is killed. He believes that most collisions with cyclists could be avoided by simply slowing down and or waiting a mere 1-30 seconds. “I ask people who think those few seconds are so important, ‘Are you willing to knowingly kill somebody to save that time or just drive faster?’”

Scottsdale again - Our client Eric Marcotte (above) was knocked unconscious on November 20, 2018, when a driver failed to yield the right of way at an intersection and drove straight into him. He was thrown from his bike and landed on the roadway. Eric was also riding in the bike lane and had the right of way. 

Eric is a professional cyclist who rides between 350-500 miles per week. He knows this stretch of road and area very well, having ridden it thousands of times over the last decade of living in Arizona. At the time of the collision, he was wearing his team sponsor’s kit, which is a blue and white combination, and was riding with blinking lights. The driver claimed that Eric “just came out of nowhere.”  Eric maintains that the driver had a visible line of sight looking south well over a mile with the road being straight.

Citation: 

Violation of 28-773, Failure to Yield Right of Way

Fines/Penalties:  

$250 fine and defensive driving class for the driver, which he and his lawyer argued against for months before accepting.

Eric wants motorists to understand how important it is to be aware and attentive while taking the responsibility of driving a vehicle and believes that the system enables motorists to be negligent. “Drivers will have someone fighting for them to not be responsible. So that enables poor drivers and doesn’t help change actions,” says Eric. 

He wishes he knew how important it is that police officers and district attorneys do their job as well. He says they need to step up and set a precedent by setting the consequences for negligent/inattentive/distracted drivers in a way that has consequences great enough to change actions. Suspending licenses, implementing substantial fines, as well as raising insurance rates will make motorists more aware—a $250 fine will not.

Eric recommends riding with a camera because it can keep everyone accountable. “Then you will see how drivers treat cyclists—you can keep compiling those clips and send/share to law enforcement to show them what’s happening—and will also show you, as a cyclist, are following the law.”  


Phoenix - Our client Melissa Lemke, was out for a ride on her bike on March 10, 2019, around 11:30 am when she was struck by a driver who failed to yield to her at a four-way stop. She was wearing a white helmet and her cycling kit which was green, white, and black. It had high-visibility striping on the legs and high-vis patches on the front and back of her jersey. 

Melissa had stopped at the intersection, yielded to the driver on her right and then proceeded into the intersection once that car had passed through. This is when she was struck by a second vehicle also coming from the right who failed to yield. Melissa’s injuries included a broken elbow and a broken left wrist that required surgery. A large plate was put in her left wrist, and she had to wear a splint for her broken elbow. At first,  Melissa was dependent on her husband for almost everything: getting dressed, bathing, personal hygiene, preparing food, etc. Even now, nearly six months later, her left wrist often aches and many actions of daily living incite burning and pain in her right wrist. Melissa ordered a new bicycle but had thoughts about returning it and not riding again.

Citation: 

Violation of 28-773, Failure to Yield Right of Way

Fines/Penalties:  

Driver's ticket was dismissed by going to traffic school.

That’s right! The ticket was dismissed because of the type of ticket he was given: Failure to Yield Right of Way.  The driver now has a clean driving record while Melissa continues to deal with the physical impact of the crash. Even though the police officer came to the hospital and eventually learned that Melissa needed surgery, the driver was given a ticket that could be dismissed by attending traffic school, not a ticket that indicated he had caused serious bodily injury to Melissa from which she has not yet completely recovered.  

When she first learned of the ticket dismissal, about a month after the crash, Melissa was truly devastated.  Up to that point, she had taken a small comfort in knowing that the driver incurred a serious consequence for his actions. Finding out that the driver was able to wipe his driving record clean, while she was still seeing a surgeon and a physical therapist for her injuries, was shocking. 

“This dismissal speaks to the lack of protection we cyclists have on the road. If drivers are not penalized in a meaningful way for running down a cyclist, we are simply moving targets out there. I really don’t know when or if I will fully recover, and the driver does not even have a black mark against his driving record,” says Melissa.

She wishes cyclists knew how they may have to start fighting for their rights at the scene of the crash and that they need to know the laws so they can ask the right questions. She also wishes that she had been able to take photos and had thought to record the driver saying over and over that he did not see her. “I wish I would have questioned the officer about the type of ticket, but I did not know he had choices to make.  I thought he was at the hospital verifying my injuries so he would have evidence to support a serious charge against the driver,” says Melissa.

She thought she could depend on the police. Although she was conscious after her crash, many cyclists are not or are so injured that they cannot not possibly stand up for themselves at the scene.  “We should be able to depend on law enforcement to protect both drivers and cyclists,” she says. 

So, what can you do to bring about change? Here are some suggestions:

  • Get involved with a bicycle advocacy group (PeopleForBikes, either at the national, state, or local level).

  • Contact your local state legislator to advocate for laws to make cycling safer.

  • Know the laws in your state, especially those pertaining to Vulnerable Road Users.

  • Support cyclists who have been injured by showing up at the driver’s sentencing hearing.

  • Talk to your friends, family, and cyclists about your experiences or close encounters with motorists. Spread the word about how to make cycling safer.

For more information about cycling laws in Arizona and municipal codes for Phoenix, Scottsdale, and Tucson, visit our website. Would you like to get involved in Arizona bike advocacy, specifically? Then please consider joining local groups working hard to make positive changes, like the Rob Dollar Foundation, and Look Save a Life Arizona.

Lumber Truck Driver Cited with Careless Driving As Result of Cyclist's Video

But -Plea Deal Results in Defective Vehicle Charge…

A missed opportunity for justice—that is how cyclist Jonathan Wirth feels about the plea deal offered to the driver of a tractor trailer who violated the three-foot rule. The initial charge of careless driving was dismissed in Lafayette Municipal Court. Instead, the prosecutor reached a plea deal with the defendant on the lesser charge of a defective vehicle, which is a two-point violation. “How was that justice?” asks Jonathan.

This is why our office advocates to district and city attorneys to stop offering plea deals. Both Boulder and Jefferson County DA Offices have shown their commitment to holding drivers accountable and have been getting positive results for cyclists. Find out more about how DAs in Boulder and Jefferson Counties are handling cycling cases.

Here’s what happened to Jonathan. On April 9, 2019, he was commuting to work in Boulder County when the truck driver buzzed him within twelve inches of his rear pannier, coming even closer to his left shoulder. The wind created by the truck pushed Jonathan to the left and right and eventually forced him off the road into the dirt. He was not injured but was fearful for his life and felt the driver completely disregarded his safety.

Jonathan is not new to cycling. It was not his first time on a bike or even riding this stretch of State Highway 7 (East Baseline Road) in Lafayette, CO. He used to race both road and mountain bikes and is currently a level 3 National Interscholastic Cycling Association mountain bike coach at the high school where he teaches. He understands the rules of the road and strategies to stay safe. Jonathan wears a neon yellow jacket while riding his bike and is very visible.

As Jonathan was going to work that day, the paved shoulder he was riding on ended. Before taking the lane, he looked over his shoulder and saw a tractor trailer approaching. With his left arm, Jonathan signaled a downward swinging arm motion indicating to the driver to move over into the empty left-turn lane. He even made eye contact with the driver. 

Jonathan thought that the truck would move over, out of the lane, to safely pass him as all others cars had done on past rides. He was wrong—the driver came dangerously close to him. Jonathan felt like he was being pulled under the truck and was blown off the paved road. After collecting himself, Jonathan followed the truck on his bike and saw it turn into a gas station.  He approached the truck while the driver was inside the station and took photos of the company logo and license plate number. He learned that the truck belonged to a wood supply transfer company located in Lafayette.

The close call was captured on Jonathan’s Cycliq6 HD tail light camera. He is very thankful that he had his camera on his bike and plans to install a front-mounted camera as well to capture traffic in front of him. Since Jonathan had video footage, he decided not to confront the driver.

Following the incident, Jonathan took action. He contacted the company and was informed that they would send the information “up the chain.” On April 10th, the next day, he went to the Lafayette Police Department and filed a police report as well.  Jonathan showed Officer C. Hayford the video footage. In the incident report, Officer Hayford noted her observation of the incident from the footage as a “large semi truck with a trailer driving at a high rate of speed past Wirth.” On April 11th, Officer Hayford spoke to the driver by phone. According to the report, the driver thought that Jonathan was signaling his intention to get into the left-turn lane by sticking his left arm straight out to the side. When it became apparent that this was not the case, the driver started pulling into the left-turn lane. He told Officer Hayford that he thought he had given Jonathan enough room but also stated that he was unable to start moving into the left turn lane until he was nearly next to Jonathan due to oncoming traffic. 

As the video shows, he clearly did not give Jonathan the required three feet when passing as mandated by Colorado law.

3 Feet State Law.jpg

The law (C.R.S 42-4-1003 (1) (b)) states that motorists must give a bicyclist at least a three-foot separation between the right side of the driver’s vehicle, including all mirrors or other projections, and the left side of the bicyclist at all times when passing. 

It is important to remember that in states where there is a 3-foot law, there is likely to be a provision that allows motorists to cross a solid double yellow centerline when passing to give cyclists the minimum required distance—as long as it is safe and clear of oncoming traffic.

Actual signage in Boulder County thanks to Cyclists4Community and Boulder County Government

Actual signage in Boulder County thanks to Cyclists4Community and Boulder County Government

If there is oncoming traffic, drivers must slow down behind the cyclist and wait to pass. Do not attempt to shoot the gap between the cyclist and the oncoming car. You must give the cyclist three feet no matter what!

Following her conversation with the driver, Officer Hayford called Jonathan and informed him that the driver had a different version of what had happened. Jonathan asked for him to be cited anyhow. The driver was summoned to appear in court. 


Jonathan was willing to take a personal day from teaching to attend the court hearing and ask for his rights. As a result of the plea deal, he did not get that opportunity. 


He believes cyclists should be able to ride on all Colorado state roads. Jonathan has contacted the Colorado Department of Transportation the past four years about this section of road. They are currently in the planning stage of widening it.

If you are involved in a similar situation, we encourage you to file a report with local authorities and the Close Call Database. You can sign up for free via STRAVA. You will get notifications when other riders update the database concerning incidents in your area. The mission is also to gather information about repeat offenders in hopes that information can then be provided in comprehensive form to law enforcement.  You can also call the Colorado State Patrol Aggressive Driver hotline or your state’s equivalent. In Colorado, dial *277 (*CSP).  The hotline has been approved for use by motorists to report drunk or erratic drivers, and it has been approved for use by cyclists to report motorist aggression.

IMG_5687.jpg

Check out our blog post for more information on crossing the centerline to pass a cyclist.

You can also get some of our 3-foot law stickers by sending a request with your address to connect@hottmanlawoffice.com.

Jefferson County Taking A Tough Stand Against Drivers Who Injure Cyclists

A collaborative blog by Hottman Law Office, Steven Lykens and the Jefferson County DA’s office

Napa.JPG

Steven Lykens—husband, engineer, competitive cyclist—made a point of attending and speaking at the sentencing hearing of a driver who caused him serious bodily injury.  He wanted to emphasize to the court, the district attorney’s office, and to the driver that the outcome of the case mattered to him and to the cycling community as a whole. 

On May 16, 2019, Steven addressed Jefferson County Court Judge Mark Randall and asked him to order 200 hours of community service as part of the driver’s sentencing. Considering the time that he spent in the hospital, at appointments with doctors, as well as time spent working to heal his injuries, Steven felt 200 hours was fair.

The driver, Miranda Lewin, was sentenced to 120 hours of community service to be completed in 120 days on the charge of careless driving. Her public defender argued for fewer hours, but Judge Randall did not back down. In fact, he told Lewin she is a terrible driver based on her previous (and subsequent) traffic convictions and warned her that she would be back in court if she did not serve her community service. Judge Randall reminded Lewin that drivers have a responsibility to their community, including cyclists. 

Lewin, who was 20 years old at the time of the collision with Steven, was previously convicted of driving a vehicle while impaired by alcohol/drugs in 2016, careless driving, and operating a motor vehicle as a minor driver with an unauthorized passenger in 2014. Her driver's license was revoked in 2016 due to the alcohol offense, but it had been reinstated prior to this collision.

On the morning of September 2, 2018, Steven was riding in a bike lane in Lakewood when Lewin turned right, directly in front of him, into a 7-11 parking lot. Steven collided with Lewin’s vehicle and was thrown from his bicycle, landing in the 7-11 parking lot. He was unable to move and yelled for someone to call 911. Lewin remained at the scene and was later cited by Lakewood Police for careless driving causing bodily injury. Steven considers himself “lucky” that he went over the hood of the vehicle instead of under it or into oncoming traffic.

He was transported by ambulance to St. Anthony’s Hospital with lacerations to his right ankle and right elbow, road rash, and an abrasion to his right cheek. Officer Barefoot of the Lakewood Police Department, who responded to the scene, was advised by the emergency room doctor that Steven had sustained a lumbar spine fracture.

As a result, Steven was in a back brace for eight weeks. He now suffers from permanent scoliosis from two fractured vertebrae and is one inch shorter than before the crash. His life and physical body are forever altered, and he is in constant pain. The collision has altered his mental state as well. Driving and cycling are still difficult for him, and he is worried it could happen again. 

During the sentencing hearing, Steven also thanked the Lakewood Police Department, the Jefferson County DA, and the court for holding drivers accountable when cyclists are injured. Often cases involving bodily injury are pled down to minor infractions, leaving victims to feel doubly wronged. 

The Jefferson County DA’s office did a fantastic job handling this case. Jefferson County DA Pete Weir wants the driving public to recognize their obligation to share the road with cyclists.

We take these cases of careless driving with injury involving cyclists very seriously and treat the victims with the same respect and dignity we treat victims who are covered under Colorado’s Victims’ Rights Amendment (VRA) which protects the rights of victims in violent crimes. Often these injuries are life-changing for victims and their families, and we do everything we can to help them through the criminal justice process.
— - Pete Weir, Jefferson County DA

In Jefferson County, careless driving/cycling cases causing serious bodily injury are generally treated as VRA cases by the DA’s office, thereby involving the victims throughout the process. Deputy DA Kate Rhodes, who handled this case, believes that the appropriate outcome was reached, and justice was served. 

Steven shown with Deputy DA Kate Rhodes (L), Megan Hottman, and Tracy Drake (R)

Steven shown with Deputy DA Kate Rhodes (L), Megan Hottman, and Tracy Drake (R)

My goal for this case was to get the defendant to realize the impact she has had on Mr. Lykens’ life and the gravity of his injuries. Mr. Lykens showed incredible patience and professionalism throughout the process.
— Deputy DA Kate Rhodes

A newly passed law, sponsored by Senator Mike Foote of Boulder and Representative Dylan Roberts of Eagle and Routt Counties, is aimed at making Colorado’s roadways safer for vulnerable road users (VRU), including cyclists, pedestrians, construction workers, scooter riders, and peace officers. Governor Jared Polis signed SB 19-175 into law on May 29, 2019. 

Careless driving that leads to seriously injuring a VRU is now a class 1 traffic misdemeanor. Convicted drivers could face restitution and a one-year suspension of their license. Courts could require drivers to attend a driver improvement course and perform community service.

Many of Steven’s friends have been injured while riding their bikes due to the neglect of a driver of a motor vehicle. He hopes that someday cyclists can ride safely on public roads without having to worry about being injured by a driver. 

Given the nature and extent of our clients’ injuries, I have always advocated to District Attorneys and City Attorneys that the FULL “careless driving causing SBI” charge needs to stick. NO plea deals, not when the injuries are so serious. Careless causing SBI is only a 4-point violation, with minimal fines. We need the FULL Charge in order to ask the Judge for serious community service hours, restitution, (and now with SB 19-175, for the driver’s license, as well). My request to all DAs and CAs we encounter: Be like Jeffco and Boulder DAs. Treat these cases as VRA cases and please, stop offering plea bargains.
— Megan Hottman, The Cyclist Lawyer

Please remember to be cautious around cyclists, or any vulnerable road user, and look for cyclists before turning—whether they are riding in a bike lane or not! 

To read more about the Jeffco DA’s office, click here.

To read more about Judge Randall, click here.

The Latest on Distracted Driving

The Latest on Distracted Driving

Current Proposed Legislation, Penalties, & Apps to Limit Distracted Driving

By Maureen & Megan

The Wednesday Memorial from January 22, 2019

The Wednesday Memorial from January 22, 2019

The Colorado Department of Transportation (CDOT) reports that distracted drivers cause an average of 40 crashes each day in Colorado. In a survey conducted by CDOT in 2017, 89 percent of participants reported driving distracted in the seven days prior to completing the survey. Sixty-seven deaths in Colorado in 2016 involved distracted drivers. If that number does not seem high to you, think of it this way instead. Every day, family and friends of those 67 people who died are dealing with loss and grieving for a loved one.

Nationwide, 3,450 people lost their lives due to distracted driving in 2016. Earlier this month, Arizona police officer Clayton Townsend was struck and killed by a distracted driver during a traffic stop. The motorist, Jerry Sanstead, crossed two lanes of traffic before colliding with the pulled-over vehicle and then Officer Townsend. Standstead was booked on suspicion of manslaughter, aggravated assault with a deadly weapon, and endangerment. He is out on a $100,000 bond. The Maricopa County Attorney's Office will now have to decide what charges to file against him. Townsend, 26, leaves behind a wife and 10-month old child.

In Colorado, lawmakers are working to improve the safety of all road users, whether motorists, cyclists, or pedestrians. A bill aimed at further decreasing distracted driving in Colorado was recently introduced to the Senate on January 24, 2019. Senate Bill 19-012 - the hands-free distracted driving bill -  is now under consideration by the Senate Transportation & Energy Committee. (Click here to take action).

Photo Credit: Bob Carmichael - Courtesy of Cyclists 4 Community

Photo Credit: Bob Carmichael - Courtesy of Cyclists 4 Community

SB19-012 would prohibit drivers of ALL ages from using wireless telephones while driving. Current law only prohibits individuals younger than 18 years of age from using wireless telephones.

The proposed bill also extends the existing provision of the use of wireless telephones to include all mobile electronic devices.  These are handheld or portable electronic devices used for amusement, transmitting wireless data, or voice communication between two or more parties, e.g.  pagers, electronic games, laptop computers, or tablets. Also included are wearable mobile devices with a touchscreen. Think watches that monitor your heart rate, daily activity, movement, etc. For a complete list of mobile electronic devices, click here.


Images below courtesy of the Colorado Department of Transportation - #CrashNotAccident

Penalties for distracted driving would also increase under SB19-012 as follows:

Source: Colorado Legislative Council Staff Issue Brief, Number 17-28, July 2017

Source: Colorado Legislative Council Staff Issue Brief, Number 17-28, July 2017

  • First violation - $300 and 4 points - a class 2 misdemeanor traffic offense

  • Second violation - $500 and 6 points - class 1 misdemeanor traffic offense

  • Third or subsequent violation - $750 and 8 points - class 1 misdemeanor traffic offense


Distracted driving is a global problem. Countries such as Canada are implementing tougher penalties. In Ontario, convicted distracted drivers will have their license suspended for three days on a first offense, seven days after two convictions, and for 30 days for third and further convictions. Fines would increase as well with drivers paying up to $3,000 for third or subsequent convictions.

One way to limit distracted driving is to use a cell phone blocking app or device. Drivers are prevented from making or accepting calls, texting, or accessing the internet while the vehicle is in motion.

Auto Response Apple Phone.jpg

If you own an iPhone, check out the “Do Not Disturb While Driving” feature in your phone’s settings. Phone notifications are withheld while driving, and an automatic response will be sent to the person trying to reach you.

Apple CarPlay features Siri voice control and allows you to make calls, send and receive messages, listen to music, and get directions while keeping your hands on the steering wheel and your eyes on the road.

Android Auto offers drivers hands-free voice control using Google Assistant. The Assistant can help you get step-by-step directions, call phone numbers from your contacts, chat with your favorite apps, read your messages aloud, and text back.

There are plenty of apps on the market that help prevent distracted driving and help parents monitor their teen driver’s cell phone use. Check out the Drive Safe Mode or LifeSaver apps. LifeSaver blocks all phone usage and lets parents know that their child arrived safely. The app locks the phone once the vehicle starts moving. It gives drivers iTunes rewards for safe driving. Check out more apps here.

CDOT is working to bring awareness to driving safely on Colorado’s roads. Their digital message boards focus on distracted driving, seat belts and work zone safety. The messages are designed to grab the driver’s attention, and they get people talking. Maybe you have even noticed some of the messages directed at distracted driving.


Looking to the future, autonomous vehicles or self-driving cars may be part of the solution to making roadways safer. Many collisions are preventable and are a result of distracted drivers who text, talk on a cell phone, or enter data into a navigation app, etc. There are lots of pros and cons to autonomous vehicles. An argument for autonomous vehicles is certainly that 81 percent of the estimated 5.5 million car crashes that occur in the United States every year are caused by human error. Computers could reduce the number of collisions each year. There is also no chance for a computer to be distracted, which is a leading cause of crashes every year.

Currently, testing of driverless cars is only allowed in five states: California, Florida, Michigan, Nevada, and Washington. Experts predict that the first commercially available semi-autonomous cars could be on the road in the next one to two years. (More here).

A big piece of the distracted driving battle is making sure no cyclists are driving their cars (or bikes) with phones or devices in hand.  We have all seen it - cyclists sitting up on their bikes two-handed texting on their phones with their faces in their screens.  It is up to us in the cycling community to perfect our behavior and do this right, and lead by example.


CALL TO ACTION FOR CYCLISTS:

If cyclists driving cars cannot put down their own phones, how can we ask motorists who ARE NOT cyclists to do so?  We cannot lambaste "those motorists" for driving distracted while exhibiting the same behaviors. It always helps our causes and battles when we can say cyclists are doing everything we can as a group to improve our own conduct.

We have more information on distracted driving and what you can do to make the roads safer for all users in our blog post Take the Pledge:  April is Distracted Driving Awareness Month. Don’t put others at risk. Put your mobile electronic devices down while driving or just turn them off.


Colorado's New Stop-As-Yield Legislation

By Megan & Maureen: 

SB18-144

Bicycle Operation Approaching Intersection

Concerning the regulation of bicycles approaching intersections.

On May 3, 2018, Colorado Governor Hickenlooper signed into law SB144, or what’s commonly referred to as the Idaho stop, also known as a safety or rolling stop or “stop as yield.” In effect in Idaho since 1982, the law allows cyclists to treat a stop sign like a yield sign and a red light like a stop sign. In 2017, Delaware adopted a limited stop as yield law.

Interestingly, the new Colorado law isn’t actually a state law – it’s recommended language, which each individual city or county may now adopt at its option.

C.R.S § 42-4-1412.5 provides a statewide standard on the regulation of bicycles approaching intersections which local governments can choose to implement:  Idaho stops were already legal in Aspen, Breckenridge and Dillon, as well as Summit County, prior to the passage of this new law.

(1) At intersections with stop signs, a cyclist should slow “to a reasonable speed and yield the right-of-way to any traffic or pedestrian in or approaching the intersection.” The cyclist may then turn or go through the intersection without stopping.

A reasonable speed is considered 15 mph or less. Local governments may reduce or increase the reasonable speed but will be required to post signs at intersections stating the lower or higher speed limitations.

(2) At red traffic lights, cyclists are required to completely stop and yield to traffic and pedestrians. Once the cyclist has yielded, they may “cautiously proceed in the same direction through the intersection or make a right-hand turn. A cyclist may not go through the intersection at a red light if an oncoming vehicle is turning or preparing to turn left in front of the person.”

The law further states that a cyclist may only make a left-hand turn at a red traffic light if turning onto a one-way street. The cyclist must stop and then yield to traffic and pedestrians before turning left. NOTE: It is not legal for a cyclist to make a left-hand turn onto a two-lane road (one lane in each direction) at an intersection with a red traffic light.

This law does not give cyclists the right to blow through intersections: they still have to yield. 

Megan Hottman (@cyclist_lawyer) on Instagram: "Round 2 filming bike safety/motorist awareness #PSA videos today with the #bikeambassadors and..."

(Example see video at right: our friend Katie running a stop sign (part of a cycling video series the City of Golden is making-don't worry, this was a controlled intersection!)

At all other times, cyclists must comply with the rules set forth in CRS §42-4-1412 and 42-4-221 regarding the operation of bicycles and other human-powered vehicles.

The main argument for the Idaho stop appears to be that it increases safety for cyclists.  Senator Andy Kerr, who authored Senate Bill 18-144, is a cyclist himself. He maintains that the most dangerous time for a cyclist is when they are stopped at an intersection.  Colorado’s local bicycle advocacy group, Bicycle Colorado, was also strongly in favor of this new rule and was actively involved in its passage.

If a cyclist is not waiting at an intersection, they are less likely to be hit by a car. The faster they can get through the intersection and out of the way of motorists, the better. Additionally, when a cyclist can proceed through an intersection and get out in front of traffic, there is less chance of getting hit by a vehicle making a right-hand turn.

A study by Jason Meggs titled ‘Bicycle Safety and Choice: Compounded Public Cobenefits of the Idaho Law Relaxing Stop Requirements for Cycling’ found that a year after the Idaho stop law was implemented, cyclist injuries declined by 14.5 percent in Idaho. Meggs further stated that there is no evidence that fatalities increased as a result of the adoption of the law in Idaho.

“I'm an ‘Idaho Stopper’ who approves this change in traffic laws that favors cyclists. As a threatened road user group, cyclists need the added protection of bike-specific laws that promote safer cycling like the Idaho stop and 3-foot passing.” (Richard H.)

Another argument in favor of the law is that it legalizes what most people already do. A study by DePaul University’s Chaddick Institute for Metropolitan Development found that only about 1 in 25 cyclists come to a complete stop at stop signs. Two out of three cyclists go through red lights when there's no cross traffic. (See also- CU Study).

The most prevalent response as to why cyclists break the rules of the road was “personal safety,” with more than 71 percent of respondents citing that as a reason. Saving energy came in second for bicyclists (56 percent) followed by saving time (50 percent). Increasing one’s visibility was the fourth-most-cited response (47 percent) for bicyclists breaking the law. The authors noted that an overwhelming majority of bicyclists break the rules, but suggested they did so in situations where little harm would come to themselves or others.
— Aaron Johnson, a PhD student in sociology at CU Boulder : https://www.colorado.edu/asmagazine/2017/08/04/biking-bad

It has also been argued that it takes significant energy for a cyclist to start again after having to stop at stop signs/traffic signals.  The DePaul study suggests that “when cyclists sense there are no immediate safety risks, their desire to maintain forward momentum and conserve energy almost always exceeds their desire to strictly adhere to traffic laws.”

We solicited comments and feedback via our Facebook page and share below, some of the varying thoughts we received:

“I think it's a good thing for cyclists, codifying what a lot of people, frankly, were doing anyway. It doesn't absolve cyclists of a responsibility to ride safely, but just acknowledges the realities of bike riding.” (Brandon R.)

The new law could also improve the flow of traffic and reduce congestion by getting cyclists and motorists through intersections more quickly.

Another argument: traffic signs and signals were not created with cyclists in mind. Cyclists often have to wait at traffic lights until a motor vehicle triggers a sensor to change the light: 

“I approve of this, especially the red stop light law. So many times I come across stupid stop lights that won't change unless they detect a car. This will allow cyclists to proceed without fear of a ticket.” (Kerry N.)

Not everyone is in favor of the new law. Opponents argue that bicyclists should follow the same rules as motorists. They further maintain that bicyclist behavior will be even more unpredictable and dangerous:

“All users of the road have to abide by the same set of rules. Confusion will abound and accidents will occur.” (TJ R.)

Many worry that the new law should be implemented statewide and will lead to confusion for both drivers and cyclists since counties and municipalities can decide whether to adopt the law:

“The opt-in aspect is disappointing and will create significant confusion for motorists, cyclists, and law-enforcement. Imagine if Denver opts-in but Lakewood does not. So east of Sheridan you can use the Idaho stop, but west of Sheridan doing so will get you a ticket. Someone driving through Lakewood who sees a cyclist getting a ticket for rolling a stop sign will assume that behavior is not permitted anywhere. So when a cyclist does it in front of them in Denver, they're going to get angry and annoyed at the cyclist for (incorrectly) believing the cyclist is breaking the law. While I understand the need to add that piece in order to make the legislation palatable for the state legislature to pass it, the inability to have a uniform law that would improve cyclist safety is disappointing.” (Kathryn W.)

Some suggest that the law may create even more tension between motorists and cyclists:

“As a cyclist, I think it makes a lot of sense, but motorists aren't likely to see it that way. So, if widely used, I think it is going to inflame the notion that cyclists are an elite group who believe ‘the rules don't apply to them’ (because many motorists will be either unaware of the change or just dislike it). I also think you are safest on a bike on the road when you do predictable things - meaning that you act like a car. When you move in between being-like-a-car and following some pattern that drivers aren't used to, that is when people make mistakes because something happens they weren't expecting.” (Greg M.)

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We ran an informal poll of Golden-area cyclists to ask them if they were in favor of this rule, or opposed to it.  While some who live out of city limits did accidentally vote, the overwhelming majority voted in favor.

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Moving forward, the challenge will now be to educate motorists, cyclists and law enforcement about the new law – if, and when, cities and counties decide to adopt it.  As of now, cyclists must still stop at stop signs and red lights until this language is adopted in their jurisdictions. And of course a cyclist always has the option to remain stopped at the red light until it turns green.  

We'd love your feedback/comments- what do you think about your local city or county adopting this legislation?  If you have a strong opinion, we recommend you let your local city council members know -chances are, they are debating this very issue right now! 

Lives Forever Changed

A collaborative blog by: Maureen, with special thanks to Chris, Rebecca, Laura, and Wally.

Sharing a passion for the outdoors and spending time with family and friends on a bike ride was how they had planned their day when the unthinkable happened.

Laura Burress and Rebecca Schmidt were on a 53-mile bike ride in Columbia, KY when they were struck by a motor vehicle. The driver, Ronald Franklin, admitted to the use of illegal narcotics. Both women had to be airlifted by helicopter to the University of Louisville for their injuries. Franklin, who was taking Percocet and using cocaine, was not injured.

It was April 17, 2016 when Laura, Rebecca and her husband, Chris Schmidt, were riding their bikes on a beautiful spring day. They had stopped several times along the way to have snacks, rest and take in the beauty around them.

The ride was Laura’s longest to date. She bought her first road bike in March 2015 and had been riding just over a year when the accident happened. Rebecca, not new to cycling, started riding road bikes 15 years ago. Both women were wearing helmets, gloves, glasses and had a phone with them. 

Laura remembers coming back into Columbia and riding around the square. Her last memory is turning onto Fairground Street and starting up a small hill. Rebecca, who was riding out front, has no memory of what happened before the accident. They were riding on or close to the fog line, which is the white line painted on the right side of the road and had the right of way. It was around 1:30 p.m. when Franklin, traveling at an estimated speed of 45 – 55 MPH slammed into Laura and then Rebecca. The impact sent Laura and Rebecca ‘flying.’ Laura landed 34 ft from where she was hit while Rebecca landed 24 ft away. Laura’s body took the brunt of the hit. Rebecca’s helmet shattered.

At the time of the accident, Chris was up the road about 100 feet waiting for Laura and Rebecca. He did not see the accident happen but he definitely heard it. He knew something was wrong and immediately turned around and headed back. He rode up to Franklin, who he described as slow to react, disoriented and very distant, and knew that he was impaired when he saw his eyes. “He had the look of a person who was under something,” said Chris. “When he looked at me, he didn’t even know what he had done.” Franklin said that he did not see the bicyclists and asked if he had caused the accident. Chris told Franklin to stay there and then asked a football player, who was practicing nearby, not to let Franklin leave. Franklin had gone back to his vehicle and was attempting to change his front right tire, which had been punctured by one of the bicycles. Chris suspects that Franklin was trying to leave the scene. According to the accident report, Franklin claimed that the bikes swerved out in front of him. This was disputed by witnesses.

Franklin, who has prior convictions, was arrested, charged with the following and tested for drugs:

  1. Operating a motor vehicle under the influence

  2. Two counts of assault in the 1st degree

  3. Disregard/failure to yield right of way to a pedestrian or cyclist.

He was booked into the Adair County Regional Jail.

Adair County EMS treated Laura and Rebecca and then transported them by ambulance to the local hospital, T.J. Health Columbia.

Laura’s husband, Wally, was at home at the time of the accident. He had just met Laura, Rebecca and Chris about an hour before to give them some fresh water. After the accident, Chris called Wally and Laura’s neighbor - a colleague of his from work - and asked him to let Wally know about the accident. Wally left for the hospital. He could hear her screaming when he arrived.

Around 4:30 that afternoon, Laura and Rebecca were airlifted to University of Louisville Hospital, a level 1 trauma center, due to the serious nature of their injuries.

To this day, Laura and Rebecca have no memory of the accident itself. Laura remembers waking up to severe and unbearable back pain. She was screaming as she was being moved from one stretcher or bed to another to get scans. The medical providers in Louisville told her that nothing was wrong with her back but the pain was horrible. “I remember it being so bad I just wanted to go back to sleep so I wouldn’t have to feel it,” said Laura. She feels that the University of Louisville did not listen to her and get to the root of her back complaints initially. “They sent me home with a spinal cord injury and fractures. I see pictures of how much road rash, cuts and bruises I had and think that had to have hurt. But I don’t remember the pain from that. I just remember my severe back pain.”

When Rebecca woke up, she had a neck brace on and was disoriented. She wanted to know where Laura was and thought that she had missed her son’s birthday, which they had celebrated three days earlier on April 14th. Rebecca sustained injuries to her head and was diagnosed with a concussion.

Both women were badly bruised, sore and swollen. They were treated for skin cuts and abrasions and were in extreme pain.

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Somewhere between midnight and 1:00 a.m. Monday morning, they were released on pain medication from the hospital in Louisville. Rebecca was told to follow up with her local doctor if her symptoms worsened.

Wally, Chris and Rebecca’s son, Cole, had come up from Columbia and were there to drive them home. It was about a 1 3/4 hour ride home. Laura has no memory of leaving the hospital, the ride, arriving at home or the next few days. People came and went. What Laura remembers more than anything is the pain. It took two people to help her get up and go to the bathroom. She needed help to shower and to change clothes. Her back still hurt so badly and she was miserable.

The next days were filled with doctors’ appointments for Laura. She saw an orthopedic doctor for her back, an eye doctor due to blurry vision and a neurologist. She had to go to the hospital for additional x-rays because she was so bloated and was not able to have a bowel movement. A trip to the ER was necessary after developing a severe headache and feeling sick after drinking Magnesium-Citrate to help with bowel issues. A CT of her head and abdomen were done and she was discharged with an order for Golytely, which is used to clean out the intestines. Laura’s nurse friends came over on the weekend to help her. They tried everything including home remedies and had her walk around until she could not go anymore because of the pain. Needless to say, she was miserable the entire weekend. On Monday, Laura went to the ER in Bowling Green where more scans were done and Laura was given more medication. She was discharged and thought, “I will go home and die and I did not care anymore. My stomach felt like there was so much pressure inside that something could burst anytime.” The combination of pain and medications started taking a toll on her. By this time, she began thinking that maybe she was crazy and it was all in her head.

There were more doctors’ appointments that week. Laura saw a gastroenterologist and followed up with the neurologist on Thursday. She had not eaten anything since Sunday. The neurologist took one look at her and called an ambulance to her office. Laura went back to the University of Louisville ER. It was about a two-hour ride. “It was a bad ride. My back hurt so bad and my stomach had pressure. I was strapped to the board and could not move. I prayed to just make it through the next ten minutes. Then the next ten minutes,” said Laura.

It had been 11 days since the accident. That night, Laura had an MRI and neurosurgery was consulted. A neurosurgery resident told her that the MRI was abnormal. He would review the results the next morning with the attending physician. On Friday morning, the neurosurgery team came in and told Laura that surgery on her back was necessary in the next 2-3 days. She had an unstable fracture at L1-L2 with torn ligaments and the disc was protruding into her spinal cord. Laura did not want to have surgery and asked about her options. The attending physician responded, “Your back is not stable. We can put you in a brace but you will be paralyzed in less than three months.” Laura requested a second opinion by a neurosurgeon. He agreed that there was no other option but surgery.

The following Monday, Laura underwent a 6-hour back surgery in which two rods and seven screws were placed. She was in severe pain after surgery and although on IV pain medication, it was difficult to keep it controlled. On Tuesday, therapists helped her get out of bed. Moving was painful. She would get light headed and dizzy every time she got out of bed. The pain was always worse at night. “I would cry and cry in pain every night. I hated nighttime,” said Laura. It seemed like the pain was getting worse after surgery. The pain, dizziness and bowel problems continued. The pain medication caused Laura to hallucinate.

After two weeks at U of L, Laura was moved to Frazier Rehab. Here she began to get a sense of independence back. She learned how to get out of bed by herself, how to put on socks and shoes and a bowel program was started. It was determined at Frazier that Laura had suffered a mild traumatic brain injury. She had daily cognitive therapy along with physical and occupational therapy. The therapy made her so tired that she would sleep after every session. Laura was sensitive to noise and movement. The first time her therapist took her outside, she wanted to scream. She covered her face and then her ears with her hands. It was too much stimulation. After two weeks at Frazier, Laura went home.

Wally was able to get time off from work and stay with Laura from the moment she was readmitted to U of L until she was released from Frazier. “My employer let me take off work as much as I needed,” said Wally. “I often felt helpless, but I stayed as much as I could.” Each room at Frazier had an extra bed for a family member. Wally, a friend or family member stayed with her. She was alone only one night during the entire time. Once Laura came home, Wally did the laundry for months because the washer and dryer were in the basement and he helped out with housework more than usually.

Although Rebecca’s injuries did not require surgery, her recovery at home following the accident was difficult and painful. She had bruising up and down her leg and swelling of her arm. The cog from her bicycle left a bruise on her backside. Chris remembers that she did not move very much. She would lie on the couch and sleep a lot. There was not a lot of light in the room and no noise. The TV was never on. Rebecca was very sore and stiff. After about a month, she started therapy. She went through cognitive rehab therapy, physical therapy, saw a neurologist and went to a chiropractor and mental health counselor. She describes herself as tough country girl and a ‘badass’ who has always been able to cope and handle situations on her own, so it is hard turning to others for help.

The accident has been life-changing for Laura, Rebecca and their families. By now, the visible injuries have healed. It is the emotional and physical pain, which no one can see, that they struggle with every day. Rebecca lives with the frustration of others not understanding what she is going through because she looks ok. “People expect I should be normal again but I am not.”

  • Rebecca receives 20-30 Botox shots in her head, neck and shoulders every three months. Some headaches are so severe that she has to sit or lie down in a dark, quiet room just to get her “head to calm down.”

  • As a result of the brain trauma, she takes daily naps to function, suffers from fatigue, confusion, memory and concentration problems.

  • She is irritable, anxious and sensitive to noise and light.

  • She has been diagnosed with PTSD.

  • She gets angry and frustrated. “The simplest things I used to enjoy from life are now points of deep frustration and pain.”

  • She has gained weight, suffers from depression and has noticed changes in her personality.

  • She does not have the energy for activities that used to make her happy.

  • Being involved in her family’s life is important but she can still only spend a limited amount of time with her niece and nephews.

  • Before the accident, Rebecca describes herself as happy, outgoing and fun to be around. She enjoyed socializing. Now, she does not want to be around anyone and is struggling to try to find happy things in life. “She is still not the same. She’s been in a dark place. She’s very reclusive. This accident has taken away her will,” said Chris when asked about how Rebecca had changed since the accident.

  • She used to exercise and enjoyed flipping houses.

  • Rebecca has tried riding a bike again but is fearful. Chris, who is supportive of Rebecca getting back on a bike, took her and Laura to a parking lot to get them riding again. Rebecca explained that within minutes of getting on a bike, she started vomiting and broke down crying. “No medicine fixes that,” she said.

  • Rebecca’s short term memory is severely challenged. She has to write everything down and set reminders on her phone. The cognitive behavior therapist has been helping her to retrain her brain and teach her techniques to cope.

  • Rebecca has missed important family events such as her son’s first college visitation and Chris’ Ironman races. She plans events around taking her medicine so that she can function in a reasonable manner.

  • There are financial concerns that cause her stress. For eight months, they depended solely on Chris’ income. They have a son in college and debts.

  • She has not been able to work a full day since the accident and wonders if she ever will. Rebecca is the Coordinator of Technical Support Services at Lindsey Wilson College. She works Mondays and Tuesdays until 2 or 3 in the afternoon and takes Wednesdays off to recover. She goes back to work Thursdays and Fridays. Chris explained that repetitive tasks naturally come back to her. However, projects out of the norm cause her brain to fatigue. “When she is rested, she is sharp,” said Chris. She keeps the books on their rental properties, communicates with the renters and does taxes. Rebecca worries that her employer is going to fire her for not being able to complete all of her job responsibilities and requirements. Rebecca has not received a full paycheck since the accident because she is unable to work 40 hours a week.

Laura, an RN, went back to work six months after the accident. She returned with limited hours and worked her way back to 40 hours per week in one month. In December 2016, the hardware in her back was removed and she was in the hospital for three days. She returned to work two weeks later and took a different position with her company where she could work from home ninety percent of the time. Laura has a standing desk for work and spends much of the day standing. Previously, she had traveled an average of 800 miles a week as a case manager covering Kentucky and Tennessee. She knew it would be difficult as a result of the accident to return to this position. Her employment opportunities in comparison to what they were before the accident are limited. She would have difficulty working as a nurse in many healthcare settings, especially ones that would require lifting and moving patients.

Her back hurts every single day and she believes that she will continue to deal with it the rest of her life. She is down from seven medications to two now for nerve pain and anxiety. Prior to the accident, she was not on any medication. Due to the side effects of opioid use, she has refused to take any such pain medications. Laura worried that she would get dependent. She manages her pain by stretching, exercising, ice, anti-inflammatories and a TENS unit. TENS is an acronym for transcutaneous electrical nerve stimulation, which is a therapy that uses low-voltage electrical current for pain relief.

Like Rebecca, she struggles with riding a bike again and is anxious the entire time. She really wants to get back to riding because she thoroughly enjoyed it. Wally worries about Laura’s safety. He is scared the same thing will happen again and would like her to ride on trails or places where there are no cars. The accident has put fear in her unlike any experience before and has become a big part of her life. She had several experiences in the hospital from this injury that were unpleasant and potentially could have been life changing. She made her family promise not to leave her alone and to stay with her while she slept. When leaving Frazier, the nurse advised her to wear a large shirt over her back brace so as not to advertise that she was injured. This could potentially lead people to believe that she was on opioid medication, which could result in someone following her home or breaking into her house. This only added to her overwhelming fear.

In addition, Laura and Wally have dealt with the following:

  • They have not been to the movies because Laura does not feel that she could comfortably sit through a movie.

  • She and Wally missed their annual vacation last year because she had used all her PTO time for her injuries.

  • Wally missed over a month of work between the hospital and medical appointments.

  • She has missed two funerals and her nephew’s wedding due to travel distance. When she travels now, even relatively short distances, she has to stop frequently to give her back a break.

  • Wally has not ridden his motorcycle as much since Laura got hurt.

  • Memory loss and trouble focusing as a result of her traumatic brain injury.

On top of all of the medical issues, the Burress and Schmidt families had to deal with legal issues. Chris reached out to our firm just days after the accident. Megan represented Laura and Rebecca in the civil case and she was able to obtain full limits from all applicable insurance policies. While the civil case resolved quite quickly, the criminal case dragged on until September 12, 2017 when Franklin was finally sentenced.

There was lots of frustration for the families during the criminal case. The Commonwealth’s Attorney, Gail Williams, who was prosecuting the case, did not communicate important information and dates to the families. They were not given adequate time to plan for traveling or time off from work.

The Kentucky Crime Victim Bill of Rights Handbook states that victims shall receive prompt notification, if possible, of judicial proceedings relating to their case. It goes on to say that attorneys for the Commonwealth shall make a reasonable effort to insure that victims and witnesses are notified promptly of any scheduled changes that affect their appearances.

Chris said it was embarrassing and frustrating how the case was being handled. Instead of waiting to hear from William’s office, Chris started calling to get updates and information. “It was always like we were in trouble for asking questions,” said Chris. He ended up filing a complaint against Williams. Wally felt like Williams showed no interest in helping the families and was lazy. Megan stepped in and attempted to act as a liaison between the families and William’s office, and as a guide through the criminal matter. When Megan called Williams to obtain information on their behalf and per their request, he hung up on her. Following this phone call, Williams sent Megan a letter stating that he was refusing to discuss the case any further and would not engage in any further conversations with her.  While he claims he was "more than happy to discuss the case with the victims," in truth, the victims were given the same treatment- radio silence, condescending tones, and last minute demands that they appear in court with no advance preparation or discussion. 

Megan continued to remain closely involved with both families until the conclusion of the case. She had no ulterior motive other than to see that the system properly prosecuted Franklin and held him accountable. The victims wanted to ensure justice against the driver who had caused so much harm and needed someone to represent them. Megan reflects, "It was pure teamwork, and while hard and exhausting at times, we all stayed the course until the end. We just kept pushing until we got information and answers.  How awful to have these victims treated like this by the appointed official elected to represent them."  “Mr. Williams was not serving us. He was serving himself. Megan became our best friend. She’s part of our family. She cared about us as individuals. She made us feel like a family member working on a case for a loved one,” said Chris.

Thankfully, Williams retired from his position during the criminal case. Brian Wright, a new, more determined and involved district attorney stepped in and handled the case until resolution. Chris describes him as more thoughtful, attentive to detail and an excellent communicator ... a polar opposite of Williams.

Since Franklin pleaded guilty to two counts of assault in the second degree (a felon), failure to yield right of way and driving under the influence (both misdemeanors), there was no jury trial. As part of the plea agreement, Franklin had to agree to have his identity used in a bicycle safety awareness video. The video would also include his statement at final sentencing. Mr. Wright recommended a nine-year prison sentence.

At the sentencing, Franklin gave his statement in which he apologized to the victims and asked for forgiveness. What he did not do, was take responsibility for driving under the influence that day. Instead, Franklin stated, “Anybody, anybody that rides bicycles and stuff, I mean people needs to be really careful of them ‘cause they are easy to miss.” Following Franklin’s statement, Mr. Wright faulted Franklin for misconstruing the cause of the accident and emphasized that it is not that bicyclists are hard to see on the roadway; it’s that people should not be driving after using cocaine and taking Percocet because it puts everyone in danger. Chris did not feel like it was a heartfelt, sincere apology. Franklin’s words were empty.

Laura and Rebecca were able to address the court during the sentencing hearing. Laura spoke first and read her victim impact statement. “Before the accident, I was active, independent and confident. I ran, swam, biked and worked out at least five days a week. My activity level has changed dramatically because I currently am unable to do the things I once did.” She went on to say, “I have had to learn how to ask for help and accept assistance with things I used to do on my own.” She asked the judge to consider the pain and suffering that she had been through and to remember that the pain was not over.

Chris read his wife’s statement. Rebecca was not able to tell her side of the story herself in court that day because the stress, anxiety and emotions connected with the accident would have gotten her too upset to speak. In her statement, she expressed that her life would never be the same because of Franklin but that she was learning ways to adjust. “It’s sad. I have to adjust my life because of you, because you have problems with drinking, drugs and other things. If you don’t think you have a problem, please look at your list of convictions.” She hopes that Franklin never gets to drive again because his recklessness almost took away two lives. In her final question to Franklin, she asked whether he planned on being part of the solution or whether he would continue being part of the problem.

The court followed the recommendation of the Commonwealth and sentenced Franklin to nine years. Due to the seriousness of the event, probation was denied. Franklin received credit on his sentence since he had already served one year in jail. He is eligible for parole in February 2018.

As the families try to move forward, Chris encourages Rebecca to remain positive. He leaves her thoughtful notes and flowers and even set up a bike on a trainer in the house for her. He reminds her how fortunate they are and kisses and hugs her every day.

Laura and Rebecca do talk about the accident. Sometimes they laugh, sometimes they cry. Rebecca bounces questions off of Laura since she is a nurse. Rebecca says they are both pretty positive and glad they made it out alive.

Did Franklin receive his just sentence?

Rebecca has mixed emotions. “I am a badass but tender hearted too.” He had so many prior convictions that he should not have been on the road. As for Chris, he is pleased that the judge chose the maximum sentence. He also believes in grace in the world and said that if our system says that this is the penalty, then grace should be allowed. He hopes that Franklin changes for the best.

What advice do they have for motorists and bicyclists?

  • Motorists need to slow down and share the road.

  • Don’t drive distracted. Pay attention while driving.

  • Bicyclists should do what they can to be safe and follow road rules.

  • Life is too short. There is no reason for motorists and cyclists to hate each other. We can share the road.

  • Act friendly and thoughtful.

  • Choose roads that are less traveled.

Laura has a final piece of advice; if it’s something you enjoy, don’t give it up. Don’t let fear keep you from riding, myself included. I want to enjoy riding again!

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